Kirby v Brother B's Restaurant

• Jurisdiction: Antigua and Barbuda
• Court: Industrial Court (Antigua)
• Judge: Member
• Judgment Date: 08 December 1977
• Date: 08 December 1977

Industrial Court

Browne, J. (Chairperson); Thomas, J. (Member); Christian, J. (Member)

Kirby

and

Brother B's Restaurant

Appearances:

Mr. Baldwin Spencer for the worker

Mr. Hilson Baptiste for the employer

Industrial Law - Redundancy — Workers based their appeal on the grounds that the Hearing Officer was misguided in his computation of severance pay and notice pay due the worker, and no account was taken of the worker's vacation entitlements — Held that the worker should receive all entitlements due as a result of his redundancy, less a sum owed by him to his employer.

Points of appeal - the worker:

1 The worker's side to the dispute based their appeal on the following points:

• i. The Hearing Officer was misguided in his computation of severance pay due; the worker, since Mr. Kirby's basic pay at the time he was laid off was $40 per week, and not $35.

• ii. The error in computation would therefore extend to notice pay, which should be $40, and not $35.

• iii. No account was taken of the worker's vacation entitlements in the Hearing Officer's award. The worker had received no vacation for the period June 1975 to August 1976.

Points of conflict - the employer:

• i. The employer maintained that the worker's last basic wage was $35.

• ii. The employer also maintained that the worker had received all his vacation.

Considerations:

• i. The Board noted that the employer had not complied with their request that he come equipped with records pertaining to the worker's rate of pay and vacation entitlements; which would have clarified the issue.

• ii. Bearing in mind the employer's explanation that he had not personally read the summons delivered to his office and was therefore unaware that he should have brought such records, the Board agreed that as a timesaving measure the Executive Secretary should conduct an on-the-spot examination of the records.

Matters arising out of examination of the employer's records:

• i. The examination of the employer's records carried out the same day (Thursday 8th December, 1977) revealed the information:

  • (a) The workers last basic pay was in fact $40.00 per week.

  • (b) The worker had not received his vacation for the period June 1975 to August 1976.

  • (c) Up to the date he was laid-off the worker had not completed repayment of a sum of $168.75, representing the cost of uniforms purchased on his behalf by his employer, as part of a mutual agreement covering kitchen staff. A balance of $98.75 remained outstanding.

• ii Upon discussing the implications of point (9)1 (c) the board directed the Executive secretary to write the union soliciting their views on that issue. This was done by letter dated 20th December, 1977, copied to the employer. The union replied by letter dated 3rd January, 1978, also copied to the employer.

• iii The substance of the union's views was that

  • (a) The Executive Secretary was directed only to look into the questions of the worker's last basic rate of pay, and vacation due. The question of uniform was never raised either before the Hearing Officer or the Board of Review by the employer or the union. The Executive Secretary therefore erred in introducing what was in effect a fresh matter into the proceedings, and appeared to be making out a case for the employer.

  • (b) It is highly unusual for an...